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U.S. EX REL. HINDI v. WARDEN OF MCHENRY CTY JAIL

January 21, 2000

UNITED STATES OF AMERICA EX REL. STEVEN HINDI, PETITIONER,
V.
WARDEN OF MCHENRY COUNTY JAIL AND JAMES RYAN, ILLINOIS ATTORNEY GENERAL, RESPONDENTS.



The opinion of the court was delivered by: Lindberg, District Judge.

MEMORANDUM OPINION AND ORDER

Petitioner, Steven Hindi, petitions the court for a writ of habeas corpus, claiming that 1) his underlying conviction violated his First Amendment right to freedom of speech and is in conflict with current Illinois Supreme Court law; and 2) he was deprived of effective assistance of counsel in his underlying trial for criminal contempt.

On October 11, 1996, the Woodstock Hunt Club and several of its members filed a petition for a temporary restraining order (TRO) and permanent injunctive relief as well as a complaint for damages against Hindi and several other defendants, alleging that they had violated the Hunter Interference Prohibition Act (Act), 720 ILCS 125/0.01 et seq., by using sirens, bullhorns and a glider to prevent defendants from hunting geese. Woodstock Hunt Club v. Hindi, 291 Ill. App.3d 1051, 226 Ill.Dec. 93, 684 N.E.2d 1089, 1091 (1997), abrogated by People v. Sanders, 182 Ill.2d 524, 231 Ill.Dec. 573, 696 N.E.2d 1144 (1998). The court granted the TRO and issued a preliminary injunction. Hindi was arrested and charged with violating the Act on October 12, 1996. Id. at 1092. In a verified petition for a rule to show cause that the plaintiffs filed on October 25, 1996, plaintiffs alleged that Hindi had used megaphones and other devices to disturb wild animals and hunters on Hunt Club property in violation of the TRO. Hindi, who had not been present at the court hearing at which the court granted the TRO, moved unsuccessfully on October 15 to dissolve the TRO. Id.

After a November 7, 1996, hearing, the court found Hindi guilty of the criminal contempt charge and sentenced him to 180 days in the McHenry County Jail. Id. Hindi appealed, claiming that the Act was unconstitutional under the First Amendment, that the criminal contempt was not proved beyond a reasonable doubt because he did not know the contents of the TRO until after he was accused of violating it, that the trial court did not specifically find that Hindi was guilty beyond a reasonable doubt, and that the 180-day sentence was an abuse of discretion. The Appellate Court affirmed.*fn1 Hindi filed a petition for post-conviction relief, claiming that his attorney had a conflict of interest, that he received ineffective assistance of counsel (for numerous reasons), and that his conviction was based on evidence of conduct that had occurred prior to the issuance of the TRO. The trial court denied the petition for post-conviction relief without an evidentiary hearing and the Appellate Court affirmed in an unpublished opinion. The Illinois Supreme Court denied Hindi's petition for leave to appeal. This habeas petition followed. Hindi raises the following grounds for habeas corpus relief:

1) A conviction for amplified speech directed at hunters violated petitioner's First Amendment rights to freedom of speech and is in conflict with the Illinois Supreme Court's ruling in People v. Sanders, 182 Ill.2d 524, 231 Ill.Dec. 573, 696 N.E.2d 1144 (1998);
2) Petitioner received ineffective assistance of trial counsel in the following respects:
a) counsel had a conflict of interest based on his colleague's previous advice to petitioner concerning what type of conduct was permissible under the TRO;
b) counsel permitted a combined civil and criminal contempt proceeding for his own convenience and permitted petitioner to be called as a witness despite his Fifth Amendment right not to testify;
c) on the witness stand, counsel abandoned petitioner, who had to make his own determinations as to when to assert his Fifth Amendment right;
d) after petitioner's testimony, counsel failed to rehabilitate him on cross-examination or to elicit testimony that petitioner had no notice of the TRO;
e) counsel failed to file an answer to the contempt petition and thereby failed to present any defense;
f) counsel failed to object to the admission of evidence prejudicial to petitioner;
g) counsel failed to move for a directed finding at any stage of the contempt proceedings and failed to challenge ...

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